ACCEPTILATION, contracts. In the civil law, is a release made by a creditor to his debtor of his debt, without receiving any consideration. Ayl. Pand. tit. 26, p. 570. It is a species of donation, but not subject to the forms of the latter, and is valid, unless in fraud of creditors. Merlin, Repert. de Jurisp. h. t. Acceptilation may be defined verborum conceptio qua creditor debitori, quod debet, acceptum fert; or, a certain arrangement of words by which on the question of the debtor, the creditor, wishing to dissolve the obligation, answers that he admits as received, what in fact, he has not received. The acceptilation is an imaginary payment. Dig. 46, 4, 1 and 19; Dig. 2, 14, 27, 9; Inst. 3, 30, 1.
ACCEPTOR, contracts. The person who agrees to pay a bill of exchange drawn upon him. There cannot be two separate acceptors of a bill of exchange, e. g. an acceptance by the drawee, and another for the honor of some party to the bill. Jackson v. Hudson, 2 Campb. N. P. C. 447.
2. The acceptor of a bill is the principal debtor, and the drawer the surety. He is bound, though he accepted without consideration, and for the sole accommodation of the drawer. By his acceptance he admits the drawer's handwriting, for, before acceptance it was incumbent upon him to inquire into the genuineness of the drawer's handwriting. 3 Burr. 1354; 1 Bla. Rep. 390, S. C.; 4 Dall. 234; 1 Binn. 27, S. C. When once made, the obligation of the acceptor is irrevocable. As to what amounts to an acceptance, see ante, Acceptance; Chitty on Bills, 242, et. seq.; 3 Kent, Com. 55, 6; Pothier, Traite du Contrat de Change, premiere part. n. 44.
3. The liability of the acceptor cannot in general be released or discharged, otherwise than by payment, or by express release or waiver, or by the act of limitations. Dougl. R. 247. What amounts to a waiver and discharge of the acceptor's liability, must depend on the circumstances of each particular case. Dougl. 236, 248; Bayl. on Bills, 90; Chitty on Bills, 249.
ACCEPTOR SUPRA PROTEST, in contracts, is a third person, who, after protest for non-acceptance by the drawee, accepts the bill for the honor of the drawer, or of the particular endorser.
2. By this acceptance he subjects himself to the same obligations as if the bill had been directed to him. An acceptor supra protest has his remedy against the person for whose honor he accepted, and against all persons who stand prior to that person. If he takes up the bill for the honor of the endorser, he stands in the light of an endorsee paying full value for the bill, and has the same remedies to which an endorsee would be entitled against all prior parties, and he can, of course, sue the drawer and endorser., 1 Ld. Raym. 574; 1 Esp. N. P. Rep. 112; Bayly on Bills, 209; 3 Kent. Com. 57; Chitty on Bills, 312. The acceptor supra protest is required to give thesame notice, in order to charge a party, which is necessary to be given by other holders. 8 Pick. 1. 79; 1 Pet. R. 262. Such acceptor is not liable, unless demand of payment is made on the drawee, and notice of his refusal given. 3 Wend. 491.
ACCESS, persons. Approach, or the means or power of approaching. Sometimes by access is understood sexual intercourse; at other times the opportunity of communicating together so that sexual intercourse may have taken place, is also called access. 1 Turn. & R. 141.
2. In this sense a man who can readily be in company with his wife, is said to have access to her; and in that case, her issue are presumed to be his issue. But this presumption may be rebutted by positive evidence that no sexual intercourse took place. lb.
3. Parents are not allowed to prove non-access, for the purpose of bastardizing the issue of the wife; nor will their declarations be received after their deaths, to prove the want of access, with a like intent. 1 P. A. Bro. R. App. xlviii.; Rep. tem. Hard. 79; Bull. N. P. 113; Cowp. R. 592; 8 East, R. 203; 11 East, R. 133. 2 Munf. R. 242; 3 Munf. R. 599; 7 N. S. 553; 4 Hayw R. 221, 3 Hawks, R 623 1 Ashm. R. 269; 6 Binn. R. 283; 3 Paige's R. 129; 7 N. S. 548. See Shelf. on Mar. & Div. 711; and Paternity.
ACCESSARY, criminal law. He who is not the chief actor in the perpetration of the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed.
2. An accessary before the fact, is one who being absent at the time of, the crime committed, yet procures, counsels, or commands another to commit it. 1 Hale, P. C. 615. It is, proper to observe that when the act is committed through the agency of a person who has no legal discretion nor a will, as in the case of a child or an insane person, the incitor, though absent when the crime was committed, will be considered, not an accessary, for none can be accessary to the acts of a madman, but a principal in the first degree. Fost. 340; 1 P. C. 118.
3. An accessary after the fact, is one who knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. 4 Bl. Com. 37.
4. No one who is a principal (q. v.) can be an accessary.
5. In certain crimes, there can be no accessaries; all who are concerned are principals, whether they were present or absent at the time of their commission. These are treason, and all offences below the degree of felony. 1 Russ. 21, et seq.; 4 Bl. Com. 35 to 40; 1 Hale, P. C. 615; 1 Vin. Abr. 113; Hawk. P. C. b. 2, c. 29, s. 16; such is the English Law. But whether it is law in the United States appears not to be determined as regards the cases of persons assisting traitors. Serg. Const. Law, 382; 4 Cranch, R. 472, 501; United States v. Fries, Parnphl. 199.
6. It is evident there can be no accessary when there is no principal; if a principal in a transaction be not liable under our laws, no one can be charged as a more accessary to him. 1 W.& M. 221.
7. By the rules of the common law, accessaries cannot be tried without their consent, before the principals. Foster, 360. The evils resulting from this rule, are stated at length in the 8th vol. of Todd's Spencer, pp. 329, 330.
ACCESSION, property. The ownership of a thing, whether it be real or personal, movable or immovable, carries with it the right to all that the thing produces, and to all that becomes united to it, either naturally or artificially; this is called the right of accession.
2. -1. The doctrine of property arising from accession, is grounded on the right of occupancy.
3. - 2. The original owner of any thing which receives an accession by natural or artificial means, as by the growth of vegetables, the pregnancy of animals; Louis. Code, art. 491; the embroidering of cloth, or the conversion of wood or metal into vessels or utensils, is entitled to his right of possession to the property of it, under such its state of improvement; 5 H. 7, 15; 12 H. 8, 10; Bro. Ab. Propertie, 23; Moor, 20; Poph. 88. But the owner must be able to prove the identity of the original materials; for if wine, oil, or bread, be made out of another man's grapes, olives, or wheat, they belong to the new operator, who is bound to make satisfaction to the former proprietor for the materials which he has so converted. 2 Bl. Com. 404; 5 Johns. Rep. 348; Betts v. Lee, 6 Johns. Rep. 169; Curtiss v. Groat, 10 Johns. 288; Babcock v. Gill, 9 Johns. Rep. 363; Chandler v. Edson, 5 H. 7, 15; 12 H. 8, 10; Fits. Abr. Bar. 144; Bro. Abr. Property, 23; Doddridge Eng. Lawyer, 125, 126, 132, 134. See Adjunction; Confusion of Goods. See Generally, Louis. Code, tit. 2, c. 2 and 3.
ACCESSION, international law, is the absolute or conditional acceptance by one or several states, of a treaty already concluded between one or several states, of a traty already concluded between other sovereignties. Merl. Rep. mot Accession.
ACCESSORY, property. Everything which is joined to another thing, as an ornament, or to render it more perfect, is an accessory, and belongs to the principal thing. For example, the halter of a horse, the frame of a picture, the keys of a house, and the like; but a bequest of a house would not carry the furniture in it, as accessory to it. Domat, Lois Civ. Part. 2, liv. 4, tit. 2, s. 4, n. 1. Accesiorium non ducit, sed sequitur principale. Co. Litt. 152, a. Co. Litt. 121, b. note (6). Vide Accession; Adjunction; Appendant; Appurtenances; Appurtenant; Incident.
ACCESSORY CONTRACT. one made for assuring the performance of a prior contract, either by the same parties, or by others; such as suretyship, mortgages, and pledges.
2. It is a general rule, that payment of the debt due, or the performance of a thing required to be performed by the first or principal contract, is a full discharge of such accessory obligation. Poth. Ob. part. 1, c. 1, s. 1, art. 2, n. 14. Id. n. 182, 186. See 8 Mass. 551; 15 Mass. 233; 17 Mass. 419; 4 Pick. 11; 8 Pick. 522.
3. An accessory agreement to guaranty an original contract, which is void, has no binding effect. 6 Humph. 261. ACCIDENT. The happening of an event without the concurrence of the will of the person by whose agency it was caused or the happening of an event without any human agency; the burning of a house in consequence of a fire being made for the ordinary purpose of cooking or warming the house, which is an accident of the first kind; the burning of the same house by lightning would have been an accident of the second kind. 1 Fonb. Eq. 374, 5, note.
2. It frequently happens that a lessee covenants to repair, in which case he is bound to do so, although the premises be burned down without his fault. 1 Hill. Ab. c. 15, s. 76. But if a penalty be annexed to the covenant, inevitable accident will excuse the former, though not the latter. 1 Dyer, 33, a. Neither the landlord nor the tenant is bound to rebuild a house burned down, unless it has been so expressly agreed. Amb. 619; 1 T. R. 708; 4-Paige, R. 355; 6 Mass. R. 67; 4 M'Cord, R. 431; 3 Kent, Com. 373.
3. In New Jersey, by statute, no action lies against any person on the ground that a fire began in a house or room occupied by him, if accidental. But this does not affect any covenant. 1 N. J. Rev. C. 216.
ACCIDENT, practice. This term in chancery jurisprudence, signifies such unforeseen events, misfortunes, losses, acts or omissions, as are not the result of any negligence or misconduct in the party. Francis' Max. M. 120, p. 87; 1 Story on Eq. 78. Jeremy defines it as used in courts of equity, to be " an occurrence in relation to a contract, which was not anticipated by the parties, when the same was entered into, and which gives an undue advantage to one of them over the other in a court of law." Jer. on Eq. 358. This definition is objected to, because as accident may arise in relation to other things besides contracts, it is inaccurate in confining accidents to contracts; besides, it does not exclude cases of unanticipated occurrences, resulting from the negligence or misconduct of the party seeking relief. 1 Story on Eq. 78, note 1.
2. In general, courts of equity will relieve a party who cannot obtain justice in consequence of an accident, which will justify the interposition of a court of equity. The jurisdiction being concurrent, will be maintained only, first, when a court of law cannot grant suitable relief; and, secondly, when the party has a conscientious title to relief.
3. Many accidents are redressed in a court of law; as loss of deeds, mistakes in receipts and accounts, wrong payments, death, which makes it impossible to perform a condition literally, and a multitude of other contingencies; and many cannot be redressed even in a court of equity; is if by accident a recovery is ill suffered, a contingent remainder destroyed, or a power of leasing omitted in a family settlement. 3 Bl. Comm. 431. Vide, generally, Com. Dig. Chancery, 3 F 8; 1 Fonb. Eq. B. 1, c. 3, s. 7; Coop. Eq. PI. 129; 1 Chit. Pr. 408; Harr. Ch. Index, h. t.; Dane's Ab. h. t.; Wheat. Dig. 48; Mitf. Pl. Index, h. t.; 1 Madd. Ch. Pr. 23; 10 Mod. R. 1, 3; 3 Chit. Bl. Com. 426, n.
ACCOMENDA, mar. law. In Italy, is a contract which takes place when an individual entrusts personal property with the master of a vessel, to be sold for their joint account. In such case, two contracts take place; first, the contract called mandatum, by which the owner of the property gives the master power to dispose of it, and the contract of partnership, in virtue of which, the profits are to be divided between them. One party runs the risk of losing his capital, the other his labor. If the sale produces no more than first cost, the owner takes all the proceeds; it is only the profits which are to be divided. Emer. on Mar. Loans, B. 5.
ACCOMODATION, com. law. That which is done by one merchant or other person for the convenience of some other, by accepting or endorsing his paper, or by lending him his notes or bills.
2. In general the parties who have drawn, endorsed or accepted bills or other commercial paper for the accommodation, of others, are, while in the hands of a holder who received them before they became due, other than the person for whom the accomodation was given, responsible as if they had received full value. Chit. Bills, 90; 91. See 4 Cranch, 141; 1 Ham. 413; 7 John. 361; 15 John. 355, 17 John. 176; 9 Wend. 170; 2 Whart. 344; 5 Wend. 566; 8 Wend. 437; 2 Hill, S. C. 362; 10 Conn. 308; 6 Munfd. 381.
ACCOMMODATION, contracts. An amicable agreement or composition between two contending parties. It differs from accord and satisfaction, which may take place without any difference having existed between the parties.
ACCOMPLICE, crim. law. This term includes in its meaning, all persons who have been concerned in the commission of a crime, all particepes crimitis, whether they are considered in strict legal propriety, as principals iu the first or second degree, or merely as accessaries before or after the fact. Foster, 341; 1 Russell, 21; 4 Bl. Com. 331; 1 Phil. Ev. 28; Merlin, Repertoire, mot Complice. U. S. Dig. h. t.
2. But in another sense, by the word accomplice is meant, one who not being a principal, is yet in some way concerned in the commission of a crime. It has been questioned, whether one who was an accomplice to a suicide can be punishhed as such. A case occurred in Prussia where a soldier, at the request of his comrade, had cut the latter in pieces; for this he was tried capitally. In the year 1817, a young woman named Leruth received a recompense for aiding a man to kill himself. He put the point of a bistouri on his naked breast, and used the hand of the young woman to plunge it with greater force into his bosom; hearing some noise he ordered her away. The man receiving effectual aid was soon cured of the wound which had been inflicted; and she was tried and convicted of having inflicted the wound, and punished by ten years' imprisonment. Lepage, Science du Driot,c h. 2 art. 3, 5. The case of Saul, the king of Israel, and his armor bearer, (1 Sam. xxxi. 4,) and of David and the Amelekite, (2 Sam. i. 2-16,) will doubtless occur to the reader.
ACCORD, in contracts. A satisfaction agreed upon between the party injuring and the party injured, which when performed is a bar to all actions upon this account. 3 Bl. Com. 15; Bac. Abr, Accord.
2. In order to make a good accord it is essential: 1. That the accord be legal. An agreement to drop a criminal prosecution as a satisfaction for an assault and imprisonment, is void. 5 East, 294. See 2 Wils. 341 Cro. Eliz. 541.
3. - 2. It must be advantageous to the contracting party; hence restoring to the plaintiff his chattels, or his land, of which the defendant has wrongfully dispossessed him, will not be any consideration to support a promise by the plaintiff not to sue him for those injuries. Bac. Abr. Accord, &c. A; Perk. s. 749; Dyer, 75; 5 East, R. 230; 1 Str. R. 426; 2 T. R. 24; 11 East, R. 390; 3 Hawks, R. 580; 2 Litt. R. 49; 1 Stew. R. 476; 5 Day, R. 360; 1 Root, R. 426; 3 Wend. R. 66; 1 Wend, R. 164; 14 Wend. R. 116; 3 J. J. Marsh. R. 497.
4. - 3. It must be certain; hence an agreement that the defendant shall relinquish the possession of a house in satisfaction, &c., is not valid, unless it is also agreed at what time it shall be relinquished. Yelv. 125. See 4 Mod. 88; 2 Johns. 342; 3 Lev. 189.
5. - 4. The defendant must be privy to the contract. If therefore the consideration for the promise not to sue proceeds from another, the defendant is a stranger to the agreement, and the circumstance that the promise has been made to him will be of no avail. Str. 592; 6, John. R. 37; 3 Monr. R. 302 but in such case equity will grant relief by injunction. 3 Monr. R. 302; 5 East, R. 294; 1 Smith's R. 615; Cro. Eliz. 641; 9 Co. 79, b; 3 Taunt. R. 117; 5 Co. 117, b.
6. - 5. The accord must be executed. 5 Johns. R. 386; 3 Johns. Cas. 243; 16 Johns. R. 86; 2 Wash. C. C. R. 180; 6 Wend. R. 390; 5 N. H. Rep. 136; Com. Dig. Accord, B 4.
7. Accord with satisfaction when completed has two effects; it is a payment of the debt; and it is a species of sale of the thing given by the debtor to the creditor, in satisfaction; but it differs from it in this, that it is not valid until the delivery of the article, and there is no warranty of the thing thus sold, except perhaps the title; for in regard to this, it cannot be doubted, that if the debtor gave on an accord and satisfaction the goods of another, there would be no satisfaction. See Dation, en paiement.
See in general Com. Dig. h. t.; Bac. Ab. h. t.; Com. Dig. Pleader, 2 V 8; 5 East, R. 230; 4 Mod. 88 ; 1 Taunt. R. 428; 7 East, R. 150; 1 J. B. Moore, 358, 460; 2 Wils. R. 86; 6 Co. 43, b; 3 Chit. Com. Law, 687 to 698; Harr. Dig. h. t.; 1 W. Bl. 388; 2 T. R. 24; 2 Taunt. 141; 3 Taunt. 117; 5 B.& A. 886; 2 Chit. R. 303 324; 11 East, 890; 7 Price, 604; 2 Greenl. Ev. 28; 1 Bouv. Inst. n. 805; 3 Bouv. Inst. n. 2478-79-80-81. Vide Discharge of Obligations.
ACCOUCHEMENT. The act of giving birth to a child. It is frequently important to prove the filiation of an individual; this may be done in several ways. The fact of the accouchement may be proved by the direct testimony of one who was present, as a physician, a midwife, or other person. 1 Bouv. Inst. u. 314.